The defendant urges that the provision in the latter part of Art. 15 of the "Standard Documents" determined the method for arriving at changes of price in case changes were made in the work, and in consequence that the former opinion reached a wrong conclusion in holding that since the defendant consented to the change in the timbers without claiming an adjustment in price, the contract price was not affected. The defendant's attitude is unwarranted in view of another portion of the contract, the specifications, where it is provided that in case of alterations, "The amount to be added or deducted for such change is to be fixed by a schedule of prices previously submitted and agreed upon and to be added or deducted from the final payment as the case may demand."
The article relied upon by the defendant must be read in the light of the provision just quoted from the specifications. Article 15 provides: "The value of any such extra work or change shall be determined in one or more of the following ways: (a) By estimate and acceptance in a lump sum. (b) By unit prices named in the contract or subsequently agreed upon. (c) By cost and percentage or by cost and a fixed fee." The requirement, however, was that the method should be agreed upon in advance. What would be done in case of a timely claim of the right to adjustment, without agreement of how it should be calculated, is a question not here presented.
Article 15 is wholly consistent with the views just stated, for it continues: "If none of the above methods is agreed upon, the Contractor, provided he receives an order as above, shall proceed with the work. In such case . . . he shall keep and present in such form as the Architect may direct, a correct account of the net cost of labor and materials, together with vouchers." The architect ordered the *Page 149 change, but he did not direct, nor did the defendant demand, the keeping in any form of a cost account which could be the basis of a contemplated later adjustment, and the plaintiff was under no obligation to keep such an account.
Whether the parties, mutually desirous of avoiding delay and mutual losses, were content to change the timbers without changing the contract price, or the defendant from some unknown motive or oversight failed to suggest an allowance or any means for calculating it, no such suggestion in fact was made as required by the contract, and that is the turning-point in this case.
The defendant's claim that the substitution was obtained by the fraudulent representation that it would avoid delay rests upon no finding and no evidence that compels such a finding. Moreover, it is a suggestion never made at any earlier stage of the case, and the issue cannot now be raised.
Former result affirmed.
All concurred.